Defending The Workers' Compensation Adjuster's Deposition Robert D. Ingram, Esq. Moore Ingram Johnson & Steele, LLP Marietta, Georgia Table Of Contents Preparing Adjuster Pre-deposition conference Determine issues Freeze claimant's testimony Review adjuster's relevant conduct and decisions Review standard "dos and don'ts" Review potential cross-examination questions and documents Deposition Location Production Of Documents Require written document request Appropriate discovery devices Inappropriate discovery devices Recommended document production compromise Conduct Of Deposition Deposition stipulation Deposition objections Scope of examination Scope limitations Common areas of inquiry Alternatives To Adjuster Deposition Deposing Correct Adjuster Limiting Communication Between Claimant's Counsel And Adjuster Reading And Signing Deposition -------------------------------------------------------------------------------- I. Preparing Adjuster A. Pre-deposition conference Allow adequate time to meet with the adjuster in order to properly prepare the adjuster for the deposition. If the adjuster's file has been requested arrange to have the file picked up and reviewed with privileged and objectionable documents placed in a separate file which can be easily submitted to the ALJ for an in camera inspection if necessary. For voluminous files much confusion can be avoided by "Bate" stamping the adjuster's original file prior to copying. This will also aid in future communications with the adjuster. Remember, if you attempt to
review the file and meet with the adjuster just prior to the deposition you will probably run short on time and be forced to compromise your review of the file and your preparation of the adjuster. B. Determine Issues Carefully review the form WC-14 Notice of Claim/Request for Hearing with the adjuster to identify hearing issues, relief sought, and all potential defenses. It is imperative that the adjuster have a clear understanding of the claimant's and the employer's respective theories of the case. Obviously this cannot occur unless defense counsel develops the theory and conducts enough discovery to determine the claimant's theory prior to the adjuster's deposition. For this reason, medical records should be gathered and the claimant's deposition should be taken when possible prior to allowing the adjuster to be deposed. C. Freeze Claimant's Testimony Always seek to freeze the claimant's testimony as soon as possible. This is especially true when the adjuster has obtained an investigator for the purpose of conducting surveillance. For obvious reasons, most claimants are more open and forthcoming regarding their activities and post-accident employment when they suspect they have been under surveillance but are uncertain as to the results. Many ALJs will allow claimants to be deposed prior to educating the claimant as to the results of surveillance. However, if you allow the adjuster to be deposed before you have frozen the claimant's testimony as to post-accident activity and employment, the claimant's motivation for candor and honesty may be limited to conceding his or her involvement in the same activities and post-accident employment uncovered by the investigator and revealed during the adjuster's deposition. Claimants should always be given the opportunity to damage their own credibility by misrepresenting the nature of their post-accident activity and employment before you educate them regarding the results of your surveillance. D. Review adjuster's relevant conduct and decisions An adjuster's conduct and activity leading up to a decision to controvert a claim or to raise certain defenses is a legitimate scope of inquiry by claimant's counsel. However, because of the narrow time frames within which adjusters often make decisions only limited information may be available to the adjuster when a decision is made to controvert a claim or to raise certain defenses. Be sure to determine the information which was available to the adjuster at the time a decision was made to pursue a challenged position or defense. The reasonableness of the adjuster's activity or decision will usually turn on the information available to the adjuster at the time the activity was performed or
the decision was made. Unless properly prepared, the adjuster may not recall the limited nature of the information available to the adjuster when a challenged decision was made. If a defense asserted by the adjuster was appropriate when first raised but inappropriate in light of subsequently acquired information, don't be reluctant to abandon the defense and to take corrective action. Nothing is more uncomfortable for the adjuster and defense counsel than to try and defend an indefensible decision or position taken early in a file when subsequently developed facts demonstrate the defense is no longer viable. When mistakes are uncovered in your review of the file with the adjuster, caution the adjuster against volunteering information about the mistakes but prepare the adjuster to admit the mistake if questioned regarding same during the deposition. If mistakes are identified during the pre-deposition conference, prepare the adjuster to explain why the mistake was made and what corrective action was taken once the mistake was fully appreciated. Begin corrective action prior to the deposition if at all possible. For example, if benefits were improperly suspended, or authorization was not given for appropriate medical treatment, encourage the adjuster to recommence the benefits with payment of appropriate penalties or to authorize appropriate medical treatment so the matter is cleared up and communicated to the claimant's attorney prior to the adjuster's deposition. This may eliminate the need for the adjuster's deposition and, if it does not, it may enable your client to avoid paying assessed attorney fees for the time of the claimant's attorney in preparing for and conducting the deposition of the adjuster. E. Review standard "dos and don'ts" Emphasize importance of telling truth; Don't volunteer information; Avoid exaggerations; Avoid generalizations regarding the claimant or his/her activity; Be sure to understand each question before answering; Feel free to ask claimant's attorney to repeat or rephrase question if question is unclear; Don't guess or speculate; Don't allow claimant's attorney to put words in your mouth or to put an inaccurate spin on your testimony by allowing him or her to improperly summarize your testimony; Don't agree to provide documents during the course of the deposition which were not previously requested or produced. This would prevent defense counsel from having adequate time to review and discuss such documents and to assert
appropriate objections. Allow defense attorney to respond to any such inquiries; Be cautious about responding from memory with specific dates and times; Be sure to qualify answers when appropriate by prefacing answer with "To the best of my recollection... "; Discuss the attorney-client privilege regarding information obtained from defense counsel and the fact that this privilege may be waived in certain instances to explain the adjuster's decisions or course of conduct; and Explain the purpose of the adjuster's deposition and to the extent possible, the goal of the claimant's attorney in taking the adjuster's deposition. Don't refer to documents during the course of the deposition to refresh recollection unless you are prepared to produce the document for inspection by opposing counsel. F. Review potential cross-examination questions and documents There is no better way to prepare an adjuster for cross-examination by the claimant's attorney than to anticipate the tough questions and documents which will be used in questioning the adjuster and to review them with the deponent prior to the deposition. This serves several purposes including putting the adjuster at ease by allowing the adjuster to better anticipate the types of questions he or she will be asked and it provides defense counsel with the opportunity to assist the adjuster in understanding how the wording of certain answers can be misconstrued and taken out of context. II. Deposition Location Never conduct depositions at an adjuster's office. The claimant's attorney should not be given an opportunity to conduct the deposition where the adjuster has complete access to all files, computer, etc., so as to allow the adjuster to access information not requested by the claimant's attorney prior to the deposition. The claimant's attorney should be required to request desired documents prior to the deposition even if done informally with a letter so that defense counsel has an opportunity to review the requested documents to discuss their content with the adjuster prior to the deposition. Furthermore, the claimant's attorney should not be provided with the opportunity to see or overhear conversations or observe activity or documents at the insurance company or the third party administrator's offices which could be misconstrued as improper or inappropriate. III. Production Of Documents A. Require written document request
The claimant's attorney should be required well in advance of the adjuster's deposition to identify all documents desired so that defense counsel has the opportunity to determine which documents are objectionable and so that counsel has the opportunity to review the discoverable documents with the adjuster prior to the deposition. This can be done on an informal basis without resort to the procedures outlined in the Civil Practice Act, but the claimant's attorney should at least be required to confirm the specific documents being requested by correspondence. This will avoid misunderstandings that can subsequently develop. B. Appropriate discovery devices Discovery in Workers' Compensation cases are governed by the "Georgia Civil Practice Act." O.C.G.A. 34-9-102(d). If documents are produced by the adjuster through formal discovery, the appropriate tool is the request for production of documents as referenced in O.C.G.A. 9-11-34. This is established by the express language of O.C.G.A. 9-11-30(b)(5) which establishes the parameters of document production by a party at a deposition. The pertinent provision provides: "The notice to a party deponent may be accompanied by a request made in compliance with Code Section 9-11-34 for the production of documents and tangible things at the taking of the deposition. The procedure of Code Section 9-11-34 shall apply to the request." (Emphasis added). Accordingly, an adjuster cannot be required to produce documents except by agreement of counsel if the adjuster's deposition is scheduled within thirty days after notice. The policy behind the thirty day response time is for the purpose of providing party representatives with adequate time for gathering, reviewing and determining the discoverability of documents in consultation with their counsel prior to being required to produce the documents and answer questions regarding same. C. Inappropriate discovery devices Although O.C.G.A. 9-11-45 allows the use of subpoenas for taking depositions, that Code Section is only applicable to non-party witnesses. Warehouse Home Furnishings Distributors, Inc. v. Davenport, 261 Ga. 853 (1992). Thus, a subpoena duces tecum is not a proper tool for requiring a party representative such as an adjuster to produce documents during a deposition. Likewise, it has long been held that subpoenas duces tecum never issue to anyone who is a party to the case. Ex parte Calhoun, 87 Ga. 359 (1891) and Aycock v. Household Finance Corp. of Georgia, 142 Ga. App. 207 (1977). Although a notice to produce pursuant to O.C.G.A. 24-10-26 can be used "in lieu of serving a subpoena"
when one party desires another party to bring documents to a hearing or trial, this device may not be used as a discovery tool in obtaining information prior to hearing or trial. See Bergen v. Cardiopul Medical, Inc., 175 Ga. App. 700 (1985). "A notice to produce is not a discovery tool. Notices to produce are authorized by provisions in the evidence code, which are designed to insure that documents will be brought to a trial for examination and possibly for introduction as evidence in the proceeding." Langham's Agnor Georgia Civil Discovery (rev. ed.), 13-5. D. Recommended document production compromise Because of the limited time for discovery in Workers' Compensation cases, many times a determination will not be made that the adjuster's deposition is needed until less than thirty days remain before the scheduled hearing. In these instances there is no discovery device in the Civil Practice Act which will require a party representative to produce their documents at a discovery deposition. Although the documents can generally be produced by agreement of counsel in a shorter period of time, depending upon the time remaining before the hearing, and the number of documents contained within the adjuster's file, there may be inadequate time for defense counsel to review the file and to remove objectionable documents. In such situations I generally recommend that counsel enter a stipulation to be placed on the record at the beginning of the deposition that the adjuster's file will be available for use by the adjuster in refreshing his or her recollection during the course of the deposition but will not be made available for inspection or review by claimant's counsel. This will allow the claimant's attorney to obtain complete answers to their deposition questions but will not require defense counsel to spend an inordinate amount of time reviewing a voluminous file in order to remove objectionable documents containing mental impressions, conclusions, opinions, legal theories, file reserves, attorney-client communications, settlement evaluation memoranda, etc. IV. Conduct Of Deposition A. Deposition stipulation Consider deviating from the standard discovery deposition stipulation where objections are reserved except as to form of question or responsiveness of the answer and instead make appropriate objections during the course of the deposition in order to more closely restrict or limit the scope of the examination of the adjuster. Remember, depositions in workers' compensation cases may be admissible into evidence whether or not the adjuster is available to testify at the hearing and regardless of the original purpose for taking the deposition. See O.C.G.A. 34-9-102(d)(3). You cannot "un-ring the bell" and since the ALJ is the
finder of fact, his or her decision could be influenced by prejudicial information elicited during the deposition but ruled inadmissible at the hearing. B. Deposition objections Although defense counsel should be reluctant to reserve objections and thereby allow claimant's counsel to question the adjuster regarding irrelevant matters because of the potential prejudicial effect on the ALJ, defense counsel must also avoid unnecessary or frivolous objections because this can create the impression that you are attempting to conceal something and this can adversely impact the defense counsel's credibility both with the ALJ. C. Scope of examination 1. Scope limitations: If the reason for the adjuster's deposition is not apparent from the issues raised in the WC-14, request an explanation from the claimant's attorney. If the claimant's attorney is unable or unwilling to identify a legitimate area of inquiry which appears reasonably calculated to lead to the discovery of admissible evidence and it appears the deposition is being used solely to pressure or inconvenience the adjuster in an effort to bring about settlement, then a motion for protective order may be appropriate. If a motion for protective order is filed in an effort to prevent the adjuster's deposition from being taken, the claimant's attorney will be required in their responsive brief to identify a legitimate area of inquiry or risk being denied the opportunity to depose the adjuster. During the course of the deposition the scope of the questions to the adjuster should be limited by the issues contained in the form WC-14 Notice of Claim/ Request for Hearing. Claimant's counsel should not be allowed to engage in a "fishing expedition" regarding the adjuster's handling of the claim. Likewise, inquiry into the adjuster's conduct in handling other unrelated claims should not be allowed. If the claimant's attorney refuses to limit the scope of his examination to those issues raised in the form WC-14, counsel may attempt a conference call with the ALJ. Many ALJs are receptive to resolving discovery disputes informally over the telephone and if you are able to catch the ALJ in his or her office you may be able to resolve the discovery dispute without the necessity of suspending and later reconvening the adjuster's deposition. O.C.G.A. 9-11-30(c)(3) provides that a deposition may be suspended upon an objection that the examination is being conducted in bad faith or in such a manner as to unreasonably annoy, embarrass or oppress the deponent. 2. Common areas of inquiry:
(a) Reasons for failure to authorize medical treatment. Although workers' compensation adjusters are no longer exposed for tort liability based upon their mishandling of medical treatment authorizations, the adverse consequences can still be significant. (b) Disputes regarding authorized health care providers. (c) Reasons for adjuster's unilateral suspension of benefits. (d) Results of surveillance or investigation regarding prior accidents or claims. Defense counsel often take the position that the results of surveillance efforts constitute work product and accordingly are not discoverable. The Board disagrees with this position and a new Board Rule scheduled to go into effect as of July 1, 1999 attempts to make the Board's position clear by expressly stating that surveillance videos are discoverable. (e) Reasons for controverting claim in an "all issues" case. VI. Alternatives To Adjuster Deposition In some cases the expense and inconvenience of the adjuster's deposition can be avoided by use of interrogatories, requests for admissions, request for production of documents, or pre-hearing stipulations regarding certain facts which are not in dispute and which the claimant's attorney is seeking to establish through the adjuster's deposition. In fact, in many situations interrogatories may be more appropriate than a deposition of the adjuster. This is true because the scope of answers to interrogatories is generally broader than the scope of answers to questions posed during a deposition. It is generally accepted that a corporate party is required to search all sources of information reasonably available within the corporation in responding to interrogatories even if the corporate employee assisting in the preparation of the interrogatory responses has no personal knowledge. Langham's Agnor Georgia Civil Discovery (Rev. Ed.), 12-7. Furthermore, in responding to interrogatories directed to both the employer and insurer non-objectionable information which is reasonably available to representatives of both the employer and the insurer should be disclosed. Generally, this is significantly broader than a question directed to a specific adjuster who testifies solely based upon his or her personal knowledge and who is unable during the course of a deposition to refer to outside sources of information aside from the documents produced for the deposition. It should also be noted that an employer's interrogatory responses may also be admitted as
evidence during the hearing pursuant to O.C.G.A. 34-9-102(d). VII. Deposing Correct Adjuster Due to frequent adjuster turnover experienced by insurers and third party administrators, a problem often arises regarding which adjuster should the claimant's attorney depose. Unless the claimant's attorney wants to take two depositions he or she is often confronted with the need to decide whether to depose the former adjuster who was involved in making relevant decisions or deposing a current adjuster who has embraced the former decisions and who is up to date regarding recent activity within the file. Defense counsel has little to gain by failing to disclose which adjuster is most knowledgeable regarding the issues in dispute. Word travels fast within the workers' compensation bar and both sides will be better served by a frank discussion regarding the knowledge of existing and former adjusters prior to a deposition so that needless depositions are avoided. VIII. Limiting Communication Between Claimant's Counsel And Adjuster Communication between the adjuster and the claimant's attorney is commonplace in the handling of Workers' Compensation claims. This is true because many claims and issues are successfully resolved without resort to litigation. However, once defense counsel has been assigned, the claimant's attorney should not communicate directly with the adjuster without first obtaining permission from defense counsel. The Supreme Court of Georgia interpreted Disciplinary Standard 47 to prevent such communications. The decision reads in pertinent part as follows: "An attorney may not ethically interview an employee of a corporation which is an opposing party in pending litigation without the consent of the corporation or other corporation's counsel where the employee is either: (1) an officer or director or another employee with authority to bind the corporation; or (2) an employee whose acts or omissions may be imputed to the corporation in relation to the subject matter of the case." State Bar of Georgia Formal Advisory Opinion 87-6 (87-R2) decided July 12, 1989. IX. Reading And Signing Deposition Always reserve the right of the adjuster to read and sign the deposition. This will provide the adjuster with an opportunity to correct not only mistakes made by the court reporter but mistakes made by the adjuster. O.C.G.A. 9-11-30(e) states in pertinent part that upon reviewing the transcript, the deponent may
make "... any changes in form or substance which the witness desires to make...." Accordingly, the deponent has the opportunity to modify and correct testimony if appropriate after reflecting upon the question and response. (However, see Georgia Osteopathic Hospital v. O'Neal, 198 Ga. App. 770, 775 (1991) holding that an errata sheet may not be used to erase substantive testimony). Although substantive changes can be used to challenge a deponent's credibility, the impact on one's credibility will certainly be much less dramatic if the change is voluntarily made upon the first opportunity to read the transcript than the impact will be if the adjuster fails to correct the testimony and is impeached at the hearing.